United States Court of Appeals

For the First Circuit

No. 13-1157
UNITED STATES OF AMERICA,
Appellee,
v.
DONALD J. JONES III, a/k/a Don Juan,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]

Before
Torruella, Howard, and Thompson,
Circuit Judges.

Jonathan G. Mermin, with whom Preti, Flaherty, Beliveau &

Pachios, LLP was on brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.

April 30, 2014

THOMPSON, Circuit Judge.

PREFACE
In today's appeal which seems like something straight
out of Dateline NBC's old "To Catch a Predator" series Donald J.
Jones III attacks his convictions and life sentences for federal
crimes related to his efforts to have sex with a child.

He must

settle for a partial victory, however, as we affirm his convictions

but vacate his life sentences.

And because our vacating his life

terms undoes a big part of the judge's sentencing schematic, a

resentencing on the other counts is appropriate too.
HOW THE CASE GOT HERE
We start with the facts, viewed in the light most
compatible with the guilty verdicts.

See, e.g., United States v.

Kinsella, 622 F.3d 75, 77 (1st Cir. 2010) (citing United States v.
Bunchan, 580 F.3d 66, 67 (1st Cir. 2009)); United States v.
Mercado, 412 F.3d 243, 245 (1st Cir. 2005).
(a)
A Predator on the Prowl
In 2011 Jones signed up for an account at motherless.com,
an internet pornography site.

Picking "donjuan045" as his screen

name, Jones posted on his profile page a photo of a young girl

holding a penis, with something that looked like semen on her face
and hands.1

"I am into young," read his message, "look[ing] for

We apologize for the graphic details in this opinion.

-2-

white mothers and fathers who have young and would like to see
their daughters get parted by a normal to moderate sized black
pole."

(Emphasis in original.)

"Wanting a real meeting," he

added.
A couple days later a postal inspector named Jay Stern
spotted Jones's postings.

Posing as "Jim Stuart," Stern chatted

with Jones online via motherless.com's messaging system. "Hi,

friend," Stern wrote.
something out."
back.

"I've got a daughter.

Maybe we can work

"Where are you from and how old?" Jones wrote

"Rhode Island," Stern responded, adding that his "daughter"

was "eight, almost nine."

We put "daughter" in quotes this last

time because she is fictitious, though Jones did not know this
then.

Would "I get a chance to touch her or just look at her?"

Jones wanted to know.

"I would be so gentle and kind to her," he

promised, "and would come bearing gifts."

Continuing with this

theme, he wrote a bit later that he was "a lover of all girls
little.

Don't want to hurt.

Want to love."

He suggested that

they all meet at a "[h]otel up your way," preferably "around the

end of school or maybe before so you can go on summer vacation and
I will have loved her by then."

And he eventually gave Stern his

email address and cellphone number.

Stern was not the only person Jones chatted with online
at motherless.com, by the way.

For example, having joined the

site's forum called "Very Cute Only," Jones was asked, "what is the

-3-

youngest you will fuck??"2

He wrote, "i wont go below 5 not

definite but a fairbase line."

Over the next two weeks, Jones and Stern emailed and
called each other a lot.

During their conversations Jones bragged

about his prior sexual contact with very young girls (one as young
as four).

He also bragged about his cache of child pornography,

describing some of what he had as "absolutely mouth watering." And

he emailed some child-pornography videos to Stern too.
After much discussion, the men settled on a plan.
would

travel

by

bus

from

Pennsylvania

to

Rhode

Jones

Island.

Rendezvousing with Stern and his daughter, the trio would then
check into a hotel, where Jones would perform sex acts on the girl
over the course of several days.

Stern would watch and perhaps

film what Jones did "close up" shots only, the men agreed, "[n]o
face" shots.
With the date for their get-together fast approaching,
Jones asked for and got a chance to talk to Stern's daughter
(played by another officer) over the phone. "I sent you something"
and "[y]ou should have it really, really soon," Jones told her.
What he was referring to was some clothing he had sent her, gifts
intended to make her feel comfortable around him, apparently.

He

also promised Stern that he would bring "something sexy for her to

As an "fyi," we reproduce communications as written, typos

and all having given this heads-up, we will not weigh the opinion
down with "sics."
-4-

wear" when he came up. And he emailed Stern some child-pornography

videos for her to watch, presumably to make her think that what
they were about to do was totally normal.

One video in particular

would do the trick, he said, and he gushed at the possibility of

reenacting a scene or two with her.

On top of all that, he sent

Stern a poem that he had penned for her.

It read:

Roses are red

and candy is sweet
I can't wait to get there
To tickle you little feet
To give you a hug
And share time with you
To see a smile on your face
There's nothing I wouldn't do
The symbol of Peace
Is what brings us together
But it's the love that we share
That keeps us forever
And knowing that in time
So much we will share
And if you ever need me
Call me and I'll be there.
(b)
Arrest and Indictment
When Jones later boarded a bus bound for Rhode Island,
little did he know what lay in store.

An undercover agent hopped

on in New York and sat directly behind him.

mood, the agent later said.

Jones was in a good

"Very, very talkative."

The agent,

for example, overheard Jones's side of a phone conversation with

someone (presumably Stern) discussing how he had the "evening
wear."

As the bus neared Providence, it drove by the hotel where

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Jones had booked a room for his meet-up with Stern and Stern's
daughter.

The agent then heard Jones ask the driver to pull over

so he could get off.

But the driver kept on driving.

Agents arrested Jones the second he got off the bus in

Providence.

Searches of Jones and his backpack turned up (among

other things) a sheer child-size nightgown and panties, a get-up

looking like something right off the racks of Frederick's of
Hollywood; a USB thumb drive containing child pornography; and a
smartphone containing Stern's number and email address (saved under
the name "Jim"), plus more child pornography.

Twelve child-

pornography files on Jones's thumb drive and another on his

smartphone matched ones that he had sent to Stern.

Damning

evidence, for sure.

After officers advised him of his Miranda rights3 and
obtained his waiver, Jones gave a lengthy statement.4

Trying to

explain what brought him to Rhode Island, Jones said that Stern
a man he did not know had "hit me up on my email."

"He's talking

about having sex with his kid," Jones stressed, and "I wanted to
see what he was really about."

Jones did concede that Stern had

talked "about possibly me having sex with his daughter." But Jones
wanted no part of that, and after completing his factfinding

See Miranda v. Arizona, 384 U.S. 436 (1966).

The judge admitted a recording and

interview into evidence without objection.
-6-

transcript

of

the

mission, all he planned on doing was a little sightseeing around

Providence or so he said. Critically, Jones admitted that he had
(a) opened the motherless.com account, posting the photo of the
young girl (no older than "10, 11," he said) holding a penis, with
ejaculate on her face and hands; (b) started communicating with
Stern through motherless.com; (c) "probably" posted the message
about

his

willingness

to

have

sex

with

girls

five

and

up;

(d) gotten child pornography "left and right" from a guy named
"Eduardo"; (e) emailed Stern more than 10 child-pornography videos;
(f) booked the hotel room; (g) mailed Stern clothes for his
daughter; and (h) downloaded child pornography to the thumb drive
that he had on him "stuff" to show Stern's "kid," he conceded.
As for the other motherless.com posting "look[ing] for white
mothers and fathers who have young and would like to see their
daughters get parted by a normal to moderate sized black pole"
Jones suggested that someone else "could have put that there."
Soon a grand jury indicted Jones, charging him with
crossing a state line with intent to engage in a sex act with a
person under the age of 12 (count 1);5 using the internet a
facility of interstate commerce to persuade a person under 18 to
engage in a sex act for which he could be charged with the criminal
offense of child molestation under Rhode Island law (count 2);6

See 18 U.S.C. 2241(c).

See 18 U.S.C. 2422(b).

-7-

traveling in interstate commerce to engage in a sex act with a

minor (count 3);7 transporting child pornography in interstate
commerce

(count

4);8

possessing

child

pornography

distributed

through interstate commerce (count 5);9 and committing the crimes

alleged in counts 1-3 while being required to register as a sex
offender (count 6).10

Jones pleaded not guilty and proceeded to

trial.
(c)
Conviction and Sentence
The parties dueled below over the admissibility of a
certified document showing Jones's 1993 New Jersey conviction for
aggravated sexual assault and endangering the welfare of a child.
The judge had earlier granted the government's in limine motion to
introduce

that

document,

finding

the

evidence

relevant,

not

unfairly prejudicial, and admissible under Fed. R. Evid. 414

(titled "Similar Crimes in Child-Molestation Cases").11
judge stood by his decision at trial.

And the

A New Jersey probation

officer then testified that the victim there was nine years old and

See 18 U.S.C. 2423(b).

See 18 U.S.C. 2252(a)(1).

See 18 U.S.C. 2252(a)(4)(B).

10

See 18 U.S.C. 2260A.

11

Broadly speaking, Rule 414 makes evidence of the defendant's

previous child-molestation crimes potentially admissible, even if
the evidence's only relevance is to his propensity to commit child
molestation. More on this in a bit.
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that Jones still had to register as a sex offender in 2011.

Confronted with this and the other evidence against him, Jones
tried to fight back during his lawyer's closing (he presented no
evidence and never moved for a judgment of acquittal).

Anyone

truly intending to have sex with a child would have acted more
slyly, his lawyer told the jury "you don't" give out your "phone
number," for example.
lawyer added.

Jones "was a registered sex offender," his

"Do you think he is going to leave a trail that goes

to his front door," like the prosecution "says he did?"

No one "is

that dumb," defense counsel insisted. And as for the trip to Rhode
Island, all Jones wanted was "to find out what's going on."

The

jury bought none of defense counsel's theories, however, and

convicted Jones on all counts.
Some months later the judge sentenced Jones to life plus
10 years in prison.

This is how he got there:

he imposed life

terms on counts 1-2, a 30-year term on count 3, a 40-year term on

count 4, a 20-year term on count 5, and a 10-year term on count 6
with the sentences on counts 1-5 running concurrently with each
other, and the sentence on count 6 running consecutively with the
sentences on counts 1-3.
Having set the stage, we now tackle the issues presented
on appeal, adding further details as needed.

-9-

ISSUES AND RULINGS

Unhappy

with

the

outcome

below,

Jones

contests

the

admissibility of the prior-conviction evidence, the validity of the

count-6 conviction under 2260A, and the legality of the life
sentences.

The government puts up a strong fight on the first two

fronts. But it basically stands shoulder-to-shoulder with Jones on

the sentencing issue, agreeing that we must toss the life terms.
And if we do that, the government adds, then we should let the
judge "reassess" the sentences on the other counts a suggestion
that Jones seconds.
(a)
The Prior-Conviction Evidence
Jones

thinks

that

the

judge

stumbled

evidence of the 1993 New Jersey conviction.

facets:

in

admitting

His thesis has two

first, that Rule 414 requires an actual child victim

and, he reminds us, there was none here; and second, that the
evidence was irrelevant for counts 4-5 and unfairly prejudiced his
defense of counts 1-3, see Fed. R. Evid. 401, 402, and 403.
Because he dbuts his actual-child-victim claim on appeal, we
review it only for plain error a very stiff standard that
requires him to show "error, plainness, prejudice to [him] and the
threat of a miscarriage of justice."

United States v. Torres-

Rosario, 658 F.3d 110, 116 (1st Cir. 2011); see also United States
v. Acosta-Colon, 741 F.3d 179, 192 (1st Cir. 2013); United States
v. Batchu, 724 F.3d 1, 7 n.4 (1st Cir. 2013).
-10-

He did, however,

raise the irrelevance and unfair-prejudice claims below, so we

review this part of his thesis for abuse of discretion, see United
States v. Polanco, 634 F.3d 39, 44 (1st Cir. 2011) which means we
can reverse only "if no reasonable person could agree with the
judge's ruling," United States v. Maldonado, 708 F.3d 38, 42 (1st
Cir. 2013).

Ultimately, though, his theory is not a winning one,

for reasons we now explain.

(1)
A Quick Evidence Primer
Evidence is admissible only if relevant, probative, and
not unfairly prejudicial.

See Fed. R. Evid. 401, 402, 403.

oversimplify slightly, but the basics are there.

We

Moving on, we

note that when the evidence is evidence of a defendant's other

crimes, it is typically inadmissible to show his propensity for
crime.

See Fed. R. Evid. 404(b).

We say "typically" because Rule

414 like its comrades-in-arms, Rule 413 ("Similar Crimes in

Sexual-Assault Cases") and Rule 415 ("Similar Acts in Civil Cases
Involving Sexual Assault or Child Molestation") overrides the ban
on propensity inferences in a specific situation.
Cui, 608 F.3d 54, 59 (1st Cir. 2010).

See Martnez v.

"In a criminal case in which

a defendant is accused of child molestation," Rule 414 says, "the

court may admit evidence that the defendant committed any other
child molestation."

Fed. R. Evid. 414(a).

Importantly, this

"evidence may be considered on any matter to which it is relevant."

Id.

A "child" is anyone under 14, the Rule adds.

-11-

Fed. R. Evid.

414(d)(1).

And "child molestation" includes a kaleidoscopic array

of acts constituting crimes under a variety of federal and state

statutes e.g., "any conduct prohibited by 18 U.S.C. chapter 109A
and committed with a child" and "any conduct prohibited under 18
U.S.C. chapter 110" as well as attempt or conspiracy to commit
those crimes.

Fed. R. Evid. 414(d)(2).

(2)
Actual Child Victim

As for whether Rule 414 requires an actual child victim,

Jones does not cite and we cannot find any case, anywhere,
addressing the issue, let alone deciding it in his favor.

Given

this state of affairs, we are worlds away from a plain error

i.e., an error that is indisputable.

See United States v. Marcus,

560 U.S. 258, 262 (2010); see also Cheshire Med. Center v. W.R.
Grace & Co., 49 F.3d 26, 31 (1st Cir. 1995) (finding no plain error
where (among other things) "no decision cited to us, and none of
which we are aware," showed the obviousness of the supposed error).
Things might be different if Rule 414's language clearly
supported Jones's position.

See United States v. Caraballo-

Rodriguez, 480 F.3d 62, 70 (1st Cir. 2007). Unfortunately for him,
it does not.
Pouncing on the Rule's opening clause "In a criminal
case in which a defendant is accused of child molestation" Jones
argues that "child" there must mean a real child.

Ditto for the

word "child" in the section saying that child molestation includes

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acts criminalized by "chapter 109A" of title 18 "and committed with

a child."

Surely "child" there must mean an actual child too, he

insists. The government responds with a number of reasons why that

is just not so.

Its big one is that Rule 414 only requires an

attempt or conspiracy, which, it adds, undermines any notion that

the Rule demands a completed crime with a real-life child victim.
We need not take sides, however.

At best for Jones, there is a

reasonable dispute about what the fought-over phrases mean and

that devastates his position, because (as we said a second ago) an
error open to reasonable dispute is not plain error.

See, e.g.,

Marcus, 560 U.S. at 262.

Just to be clear:
Rule 414 edict is error.

We are not saying that the judge's

Nor are we saying that it is not error.

All we are saying is that if there was error, it is not "plain."

(3)
Relevance and Unfair Prejudice
We can make quick work of Jones's claim that the judge
should not have admitted the prior-conviction evidence because (to
his mind, at least) it "was irrelevant" to counts 4-5 (the ones
dealing

with

pornography).

the

transportation

Essentially,

and

and

distribution

helpfully,

evidence's relevance to counts 1-3 and 6.

he

of

child

concedes

the

That means game, set,

and match to the government on this issue, for we know of no case

and Jones cites none suggesting that evidence must be relevant
to all counts.

See generally United States v. Morris, 532 F.2d

-13-

436, 444 (5th Cir. 1976) (stressing that the court was "aware of no
rule of law declaring that in order to be admissible on one count
of an indictment, evidence must be relevant on all counts").

All

things

his

considered,

we

cannot

say

that

the

judge

abused

discretion on the relevance question.

We turn, then, to the unfair-prejudice issue.

Rule 403

(for those not in the know) lets a judge exclude relevant evidence
if

"its

probative

value

is

unfairly prejudicial nature.

substantially

outweighed"

by

its

Unfairly prejudicial means "an undue

tendency to suggest decision on an improper basis, commonly, though

not necessarily, an emotional one."

Fed. R. Evid. 403 advisory

committee's note.
Jones complains first that evidence of his New Jersey
conviction merely encouraged the jury to infer that he had a
propensity to act like a "child molester," something that he
believes is at odds with Rules 404(b) and 403.

Not true.

Yes,

evidence offered under Rule 414 must still pass muster under Rule
403.

See Martnez, 608 F.3d at 60-61.

But when tackling the

problem, judges must be ever mindful that Rule 414 removes Rule
404(b)'s blanket ban on propensity inferences in child-molestation
cases. See id. at 60.12 And because Rule 414 flags this propensity

12

Martnez is a Rule 415 case. Id. But what we said there

applies here. See id. at 59 (explaining that Congress's "purpose"
in drafting Rules 413, 414, and 415 "was to supersede Rule 404(b)'s
prohibition on evidence of like conduct showing propensity in
sexual assault cases").
-14-

inference as proper, we cannot brand the inference as unfairly

prejudicial under Rule 403.

See United States v. Rogers, 587 F.3d

816, 822 (7th Cir. 2009) (quoted favorably in Martnez).

Readers take note, please.

Even if no unfair prejudice

arises solely because the evidence rests on propensity, that hardly

means that there are no dangers to watch out for.

See id.

The

evidence could still cause the jury to condemn a defendant based on

passion or bias, for example, which is a no-no.

See, e.g., Old

Chief v. United States, 519 U.S. 172, 180 (1997).

Think of a jury

that uses that evidence to convict because it is disgusted by the

defendant's criminal past rather than convinced that he did the
crime charged.

See id.

Or think of a jury that unsure of guilt

convicts anyway because it believes the other-crimes evidence

shows the defendant is an evildoer who must be locked up.13 See id.
Jones makes a passing attempt to raise the specter of passion or
prejudice, noting in a case parenthetical tucked in his brief that
neither of these emotions is a proper basis for conviction.

But

after telling jurors that they could draw a propensity inference

(whether to do so was up to them), the judge stressed that the
government "has the burden of proving that [Jones] committed each
of

the

elements

"indictment."

of

the

offense"

involved

in

the

current

And he reminded them that Jones was "not on trial

13

It goes without saying but we say it anyway that our

list is illustrative rather than exhaustive.
-15-

for any act, conduct, or offense that was not charged in the
indictment."

Jones says not a word about this, never explaining

why the judge's comments were not enough to neutralize any risk of
unfair prejudice, for example.

As things stand, then, Jones's

passion or bias surmise is a no-go. See generally United States v.

Mehanna, 735 F.3d 32, 64 (1st Cir. 2013) (finding no reason to
think "that the verdict was the result of passion or prejudice,"
given how the judge (among other things) "gave the jury suitably
prophylactic instructions").
The bottom line is that we see no abuse of discretion in
the judge's handling of this aspect of the case.

And so we press

on.
(b)
The 2260A Conviction
Jones grouses that his count-6 conviction (committing a
particular

felony

crime

involving

minor

while

required

to

register as a sex offender) cannot stand because, he says, the

statute of conviction 18 U.S.C. 2260A demands an actual child
victim.

He never raised this theory below in any context, like in

a motion alleging a defective indictment, see Fed. R. Crim. P.

12(b)(3)(B), or in a motion claiming insufficient trial evidence,
see Fed. R. Crim. P. 29.

And we cannot tell what the basis is for

his challenge here. If it is a defective indictment and assuming

for argument's sake that this type of attack remains open he must
show plain error to get anywhere.
-16-

See, e.g., United States v.

Troy, 618 F.3d 27, 34 (1st Cir. 2010).

But if instead it is

insufficient evidence, he must vault over the "clear and gross

injustice" hurdle too. See, e.g., Acosta-Colon, 741 F.3d at 192-93
(explaining that "the already high bar for plain error becomes even
higher

when

dealing

with

an

unpreserved

sufficiency-of-the-

evidence" challenge, "requiring a criminal defendant to show a

clear

and

omitted)).

gross

injustice

for

reversal"

(internal

quotations

He has made neither showing, however.

Reduced to its essentials, 2260A makes it a felony for

a person required to register as a sex offender to commit certain

sex crimes "involving a minor," including crimes under 2241,
2422, and 2423 remember, the jury convicted Jones of violating
2241(c), 2422(b), and 2423(b).14 Jones reads "involving a minor"
to mean involving a real minor.

We have not spoken on the issue.

But the Eleventh Circuit has, the government is quick to point out,

14

Section 2260A provides:

Whoever, being required by Federal or other law to
register as a sex offender, commits a felony offense
involving a minor under section 1201, 1466A, 1470, 1591,
2241, 2242, 2243, 2244, 2245, 2251, 2251A, 2260, 2421,
2422, 2423, or 2425, shall be sentenced to a term of
imprisonment of 10 years in addition to the imprisonment
imposed for the offense under that provision.
The
sentence imposed under this section shall be consecutive
to any sentence imposed for the offense under that
provision.
Section 2260A is part of chapter 110, which defines "minor" as
anyone under 18. See 18 U.S.C. 2256(1).
-17-

citing United States v. Slaughter, 708 F.3d 1208, 1214-16 (11th

Cir. 2013).15
Relying on its circuit's law, Slaughter noted that a
2422(b) conviction for attempted enticement does not require an
actual child victim.

See 708 F.3d at 1215 (discussing United

States v. Root, 296 F.3d 1222, 1227-28 (11th Cir. 2002)).

And so,

Slaughter added, a 2260A conviction does not require an actual

child victim either, at least when that conviction is based on a
2422 violation.

See 708 F.3d at 1215.

Slaughter drew comfort

from the fact that chapter 110 uses the phrase "actual minor" three
times, in 18 U.S.C. 2252A(a)(3)(B)(ii), (c)(2), and (e), but not
in 2260A showing, Slaughter said, that Congress knows how to
add the "actual minor" language when it wants to.
1215-16.

See 708 F.3d at

Slaughter also emphasized how its conclusion jibed with

the purpose behind these laws, which is to protect children from

sex predators.

Id. at 1216.

Surely Congress could not have

intended to let repeat sex offenders off simply because they

"enticed somebody [they] believed to be a child, rather than an
actual child," Slaughter concluded.

Id.

Turning back to our case, we point out the judge's jury

charge unobjected-to below and unchallenged here said a couple

15

Slaughter came down after Jones's trial. But we determine

an error's plainness by considering the law as it exists on appeal.
Henderson v. United States, 133 S. Ct. 1121, 1124-25, 1127-29
(2013).
-18-

of important things:

first, that none of the predicate offenses

2241(c), 2422(b), and 2423(b) "require[s] that an actual child

exists"; and second, that the jury had to find beyond a reasonable
doubt that Jones committed at least one of these crimes while
required to register as a sex offender.

Whether right or wrong

(and

or

we

express

instructions

are

no

opinion,

one

way

the

law

our

case

for

the

because

other),
they

these

are

not

"patently incorrect," given decisions from other circuits (we have

not ruled on the actual-child issue).16

See, e.g., United States

v. D'Amico, 496 F.3d 95, 102 n.6 (1st Cir. 2007), vacated on other
grounds, 552 U.S. 1173 (2008).

And when combined with Slaughter's

holding that 2260A does not require an actual victim if the

predicate crime does not (the only on-point holding from any
court), Jones cannot show either a "plain" error, see Batchu, 724
F.3d at 9-10, or a "clear and gross" injustice, see Acosta-Colon,
741 F.3d at 193 (describing how hard it is to meet that "souped-up
standard").
Desperate for a way around the problem, Jones spends a
lot of time arguing that Slaughter is irrelevant, for example
because that case involved an attempted-enticement conviction under
2422(b) while his does not.

At best, Jones has done no more than

16

See, e.g., United States v. Farley, 607 F.3d 1294, 1324-25

(11th Cir. 2010); United States v. Spurlock, 495 F.3d 1011, 1013-14
(8th Cir. 2007); United States v. Tykarsky, 446 F.3d 458, 464-69
(3d Cir. 2006). Whether these decisions are correct, we need not
and do not say today.
-19-

raise the possibility of a reasonable dispute about what 2260A

requires which gets him nowhere, because (at the risk of sounding
like an iPod stuck on repeat) an error subject to reasonable
dispute is not plain error.

See, e.g., Marcus, 560 U.S. at 262.

Still hoping against hope, Jones also suggests that two of his
three 2260A predicate convictions specifically, his convictions
under 2422 and 2423 constitute a double-jeopardy violation.
But he discusses the issue only in his reply brief and so has
waived the argument.

See, e.g., United States v. Hall, 557 F.3d

15, 20 n.3 (1st Cir. 2009).

To

summarize

succinctly,

because

Jones's

preferred

approach to the actual-child issue is far from obvious, the judge

did not plainly err in not taking it up on his own.

Obviously

nothing said here whispers even the faintest hint of how we might
someday rule on the merits of the actual-child question.

See

Caraballo-Rodriguez, 480 F.3d at 70 (explaining that our no-plainerror

holding

did

not

constitute

"ruling

on

the

merits"

concerning how to read the statute in play).

Two sets of arguments down, two to go.
(c)
The Life Sentences
Jones says that we must vacate his life sentences on
counts 1 and 2, offering a bunch of reasons.

Commendably, the

government agrees, though for slightly different reasons. We think

the government's analysis is spot-on.
-20-

We start with count 1, which, the reader will recall,

charged Jones with violating 2241(c) by crossing state lines "to
engage in a sexual act" with a person under 12.

"Sexual act" means

(among other things) "the penetration, however slight, of the anal

or genital opening of another by a hand or finger or by any object,
with an intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person." 18 U.S.C. 2246(2)(C).
And 2241(c) so far as relevant here requires (emphasis ours)
a life sentence "[i]f the defendant has previously been convicted
of another Federal offense under this subsection, or a State
offense that would have been an offense under either such provision
had the offense occurred in a Federal prison."
sentencing

concluded

that

Jones's

1993

New

The judge at

Jersey

qualified as a predicate offense under 2241(c).

conviction

Looking at the

state-court judgment and the statute of conviction not at what

Jones did to trigger the statute's application, see Descamps v.
United States, 133 S. Ct. 2276, 2285-86 (2013) we respectfully
disagree.
The state-court judgment shows that a jury convicted
Jones on a two-count indictment for aggravated sexual assault and
endangering the welfare of a child.
2a(1) and 2C24-4a.

See N.J. Stat. Ann. 2C14-

The state-court judgment also says that the

latter count "merge[d]" into the former.

zero in on 2C14-2a(1).

-21-

So we like the parties

Section 2C14-2a(1) provides that a person "is guilty of

aggravated

sexual

assault

if

he

commits

an

act

of

sexual

penetration with another person" and "[t]he victim is less than 13

years old."

One reason that section cannot qualify as a 2241(c)

predicate and one is all we need is that unlike 2241(c),

2C14-2a(1) does not require proof that the defendant acted with
the intent to degrade, humiliate, arouse, etc.

See In re T.T., 907

A.2d 416, 424 (N.J. 2006) (explaining how 2C14-2a(1) lacks that
intent element).

Enough said on that.

Now on to count 2, which, the reader will remember,

charged Jones with infracting 2422(b) by using the internet to
entice a minor to engage in criminal sexual activity.

Unlike

2241(c), 2422(b) does not have a built-in life-in-prison

proviso.

But another statute 18 U.S.C. 3559(e) does.

And

the judge relied on that statute in imposing the life sentence on

count 2.
Section 3559(e)(1) pertinently provides that "[a] person
who is convicted of a Federal sex offense in which a minor is the
victim shall be sentenced to life imprisonment if the person has a
prior sex conviction in which a minor was the victim."
3559(e)(2)(A)

lists

nine

crimes

that

qualify

as

Section

federal

sex

offenses, including 2241(c) the only one that matters here.

Also, 3559(e)(2)(B) and (C) say (among other things) that a
"prior sex conviction" includes a "State sex offense," which is an

-22-

offense that "consists of conduct that would [constitute] a Federal

sex offense." And so we are left with the question whether Jones's
state conduct would constitute a crime under 2241(c) a question
we have already answered "no," given how 2C14-2a(1) and 2241(c)
do

not

share

the

same

intent

element.

Ultimately,

then,

3559(e)(1) cannot be the basis for the life sentence.

One final matter, and we are done.
(d)
The Sentences on the Other Counts
The government says that if we vacate the life sentences,
then the judge should get to "reassess" the sentences on the
remaining counts as well, presumably because it believes that our
vacating the life terms will disrupt the sentencing structure
imposed below.

See generally United States v. Francois, 715 F.3d

21, 33-34 (1st Cir. 2013) (concluding that our vacating sentences
on certain counts affected the judge's "sentencing architecture,"
requiring a complete resentencing on all counts).

Jones agrees.

That suggestion makes sense, but only for counts 1-5 after all,
2260A (the statute underlying his conviction on count 6) obliges
the

judge

to

apply

10-year

mandatory

sentence,

to

run

consecutively with any sentences imposed for certain specified

offenses.

Consequently, we vacate the sentence on counts 1-5 and

remand for resentencing on those counts.

See id.

Naturally, we

take no position on what the resentencing outcome should be.

-23-

FINAL WORDS
The short of this longish opinion is that we affirm
Jones's convictions but vacate his sentences on counts 1-5 and
remand for a resentencing consistent with this decision.
So Ordered.

-24-